[Correction at end] Alan Shatter is concerned that RTÉ is not giving sufficient coverage to the upcoming referendum on the establishment of a civil court of appeal.

“I find it extraordinary that RTÉ on their six o’clock TV bulletin failed to make any mention whatsoever of the referendum being held to establish a court of appeal,” the Minister said.

He may be right, but it is not a constitutional amendment that was ever likely to generate much interest. If the Government genuinely wanted to ensure a high profile debate on the proposal it should not have scheduled the vote to take place on the same date as the referendum to abolish the Seanad . That proposal concerns politicians and inevitably most air time is consumed by them.

What is far more extraordinary is that the Government has tucked away in the court of appeal referendum an entirely separate amendment to the Constitution. This separate amendment would remove one of the “one judgment” rules from the Constitution (see section 5 of the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013). It has nothing to do with the court of appeal, but we will vote on both amendments together.

On October 4 next, as well as voting on abolishing the Seanad, we will consider a composite proposal, first to approve the establishment of a new Court of Appeal and, second, to remove a rule that when the Supreme Court makes a decision on a constitutional issue, only one judgment appears.

But, amazingly, the Government has limited our choice. We must vote for or against the package. We may not approve one part but not the other.

The one judgment rule (article 34.4.5°) arises when someone challenges the constitutionality of a law before the Supreme Court. Usually, the Supreme Court issues a majority judgment and other judges who sit on the particular case can supplement that judgment with comments of their own or, if they disagreed, can issue a dissenting judgment outlining why they took a different position. This is not the case with a constitutional challenge, when only one judgment may be issued and no others can be published which indicates the majority view.

“Where is my minority report?”

It is of historical and political interest that the one judgment rule was not in the original 1937 Constitution but was introduced in 1941 during the transitional period when the Oireachtas could amend it without holding a referendum. The history of the 1941 amendment is set out in the report of the Constitutional Review Group (1996):

[The provision] seems to have been inserted as a direct result of the decision of the Supreme Court in In re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940] IR 470. In this very sensitive case, the Supreme Court upheld the constitutionality of the Offences Against the State (Amendment) Act 1940 (which provided for internment) a few months after the High Court had pronounced that similar legislation was unconstitutional. Chief Justice Sullivan commenced the judgment of the court by announcing that it was the ‘decision of the majority of the judges’ and as Chief Justice Finlay was later to state in Attorney General v Hamilton (No 1) [1993] 2 IR 250:

This was apparently seen to indicate a dissenting opinion which, it was felt, could greatly reduce the authority of the decision of the court and, we are informed, and it is commonly believed, led directly to the additional clauses by the Act of 1941 in both Article 26 and Article 34.

From an educational point of view, the proposal [for separate judgments] would, no doubt, be valuable, but, after all, what do we want? We want to get a decision … The more definite the position is the better, and, from the point of view of definitiveness, it is desirable that only one judgment be pronounced … [and] that it should not be bandied about from mouth to mouth that, in fact, the decision was only come to by a majority of the Supreme Court. Then you have added on, perhaps, the number of judges who dealt with the matter in the High Court before it came to the Supreme Court, as might happen in some cases. You would then have an adding up of judges, and people saying: ‘They were five on this side and three on the other, and therefore the law is the other way.’

What is important is legal certainty as to the judgment, which may affect fundamental issues. It was also suggested that the one-judgment rule allows the Supreme Court to provide the legislature with certainty without any of its members becoming the subject of political criticism and, possibly, pressure. Moreover, certainty would not be provided by a three-to-two judgment where at any time in the future a judge might change his mind on a fundamental issue.

It can be seen that there is a debate to be had about the one judgement rule. The 1996 Review Group considered it and their report outlines four pages of argument either way. Most arguments were in support of abolishing the rule and the argument for keeping the one judgment rule was as follows:

1 it is the decision of the majority of the Supreme Court which really counts and only uncertainty is created by allowing the publication of dissenting opinions

2 the publication of dissenting opinions serves only to weaken the authority of the court’s pronouncement and impair its persuasiveness.

Ultimately, the Review Group was in favour of what the Government now proposes: to remove the one judgment rule in constitutional challenges before the Supreme Court. (The referendum will not remove the one judgment rule in the case of article 26 references by the President, and indeed the 1996 Review Group failed to reach consensus on that point.)

There are clearly reasonable arguments in favour of removing the one judgment rule as is now proposed and the Government could credibly argue that this is a “tidying up” referendum which is merely implementing a recommendation made in 1996 (by a Review Group, it could be noted, established by Fine Gael and Labour when they were last in office).

But the one judgment rule can hardly be thought of as a pressing issue. Why has the Government not taken the opportunity to consider the operation of the article 26 reference power of the President, to which the one judgment also applies, and consider wider reform of the law on constitutional challenges? After all, one of the reasons for establishing a civil court of appeal is to free up the Supreme Court so that it can devote its time to constitutional issues.

There is certainly a good case for deleting 26.2.2 and 34.4.5, but this is pretty arcane stuff to be putting to the people in a referendum. Any such proposal would surely have to be part of a reform package if it was to generate much interest from the electorate, especially given the ‘referendum fatigue’ noted by Theresa Reidy in her post here on 2 July.

Furthermore, there are existing forums to consider such wider reform. The 1996 Review Group considered almost all aspects of the Constitution, including constitutional challenges in the Supreme Court, and made recommendations for reform. The current Government established a Constitutional Convention albeit one which, despite the grand title, has a limited remit and is ordered to consider a specific list of limited issues, few of which are particularly pressing.

It is peculiar that the current Government has embarked on a series of referendums on constitutional reform which are separate from the Convention. Why are some issues to be considered by the Convention and others not? Why are some amendments proposed, presumably on the basis of recommendations almost 20 years ago, whereas others are put through a fresh round of consideration?

The most important current question is, however: why is the abolition of the one judgment rule not proposed in a separate bill and subject to a separate vote?

One might reasonably be in favour of abolishing the one judgment rule, but the manner in which the amendment is being proposed raise is significant and worrying:

it is included in legislation to establish a court of appeal and although the issues are entirely separate and unconnected they will be voted on as a package;

the government parties do not appear to be making any reference to the proposal in their referendum campaign;

there is little or no debate on the issue.

One might wonder if this is the future of constitutional amendments in Ireland: small “tidying up” measures being tucked into larger reforms, with no government or political attention being drawn to them, no real debate and no option to vote separately on each issue.

PS: Given that polling day on 4 October 2013 includes a referendum on Seanad abolition it is ironic that the only Oireachtas debate on the abolition of the one judgment rule that I could find was in the Seanad (Senator Ivana Bacik; Senator Averil Power).

[Correction]The speech of the Minister for Justice, Alan Shatter, when introducing the Bill did of course note the proposal in the following terms, but did not address why it is included in the court of appeal Bill rather than in stand-alone legislation:

It is my strong view that justice is best served by giving the Judiciary the freedom, where they so desire, to give judgments, including minority judgments, on important matters concerning the constitutionality of our laws. For the time being, this reform, in line with the review group’s recommendation, is limited to the Article 34. Therefore, if the referendum is carried, both the court of appeal and the Supreme Court will be able to issue multiple judgments in cases involving challenges to the constitutionality of laws, in the same way as in all other cases that come before them.

Senator Dan Boyle wants to amend the Constitution to provide for an offence of “economic treason”. The phrase is an effective political barb, recently thrown at Brian Cowen by Eamon Gilmore in a clearly political exchange, but what does it actually mean?

Lessons from the past in dealing with traitors?

The ordinary offence of treason is punishable by a life term in prison. Deputy Gilmore and Senator Boyle appear to refer to alleged mismanagement of national affairs by the government. Senator Boyle has not gone to the effort of defining the offence with sufficient precision to understand what is actually proposed and the question arises as to why primary legislation cannot be drafted to introduce whatever nebulous offence he has in mind.

What existing aspect of constitutional law bars the creation of a new offence? Or, indeed, what deficiency exists in the current laws that requires a new law? On the evidence of the draft bill, these questions do not appear to have been considered.

The draft provision states:

Economic treason shall consist of actions that result in reputational damage for the country, an unacceptable economic cost, or a loss of economic sovereignty for the State.

The lack of precision suggests that any reputational damage done to the country (what is the country? why not the State?) constitutes an offence. Likewise, any circumstances leading to an unacceptable economic cost could constitution treason. And what, politics aside, constitutes “a loss of economic sovereignty”? The various European Union treaties ratified by the State involved some loss of economic sovereignty; are all taoisigh since Jack Lynch guilty?

Well, of course, those events happened in the past. However, the draft Article 49.3 suggests one constitutional problem which Senator Boyle wishes to overcome. It provides:

Nothing in this section shall preclude the drafting of legislation, applying these definitions retrospectively.

If this provision is to be interpreted as intending that a criminal offence of retrospective effect could be enacted, Article 15.5.1 prohibits it.

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

One might suggest that Senator Boyle’s Article 49.3 be amended to provide that nothing in the Constitution shall preclude retrospective effect. That option is not available. Article 7 of the European Convention of Human Rights provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

It would appear, then, that the proposed amendment takes Deputy Gilmore’s soundbite and proposes to paste it into the Constitution, without any serious thought as to the possibility or consequences of doing so. It is not a serious proposal and one can only see it as a purely political stunt.

Enda Kenny has caused quite a stir with his announcement that Fine Gael would, in government, hold a referendum within one year of entering office to abolish the Seanad, the upper house of Ireland’s national parliament.

The motivation for this announcement would appear to be a desire to recapture some media momentum from the Labour party, but it makes for an odd policy issue to focus on in an important speech. There are many areas of the Constitution which various lobby groups have pointed to as needing reform (such as childrens’ rights, abortion, women, religion, blasphemy, the requirement to hold referenda for European Union treaties), but each is far more complex and controversial. It would be more useful to see Fine Gael propose a more comprehensive approach to constitutional reform which might include a series of referenda or a ‘super-referendum’. Holding a single-issue referendum on the Seanad seems wasteful in itself, given that the stated aim of the measure is to save money.

Considering the position of the Seanad in the Constitution and the wide scope for reform without constitutional amendment, it is strange that Fine Gael have taken this approach. Unfortunately, the makeup of panels and the university elector system cannot be changed, but much else can.

One quick and easy reform would be to abolish the salary paid to senators and cap expenses at around €20,000. A large swathe of the Seanad is populated by politicians who failed to get elected to the Dáil or who are building a profile for an eventual Dáil run. Most of the rest occupy it as a part-time role. If the position carried no salary the Seanad would still be filled, without difficulty. There is also an honorific element to a Seanad seat which negates the need for a salary.

Immediate cost-savings could be realised and a longer programme of Oireachtas reform could then be developed – perhaps involving the Seanad in European affairs to a greater degree. Too often sectors of Irish society object to European Union legislation at the point of implementation, rather than at the point of debate. The Lisbon Treaty provides for a greater role for national parliaments in the development of EU law and the Seanad could fulfil a useful role in Ireland’s engagement with the EU.

Finally, while much is made of the political nature of many appointments to the Seanad, we should not turn our noses up at the potential to directly appoint parliamentarians. These can represent sections of society who are too geographically or politically scattered to elect one of their own to the Dáil, or individuals who voice opinions that should be heard but would never gain a Dáil seat. The Seanad also provides the opportunity to a Government to bring external expertise to the cabinet table, as happens one a more wide scale basis in some countries (the US being the most prominent example). Up to two government ministers can be drawn from the Seanad (though a senator cannot be taoiseach, tánasite or minister for finance) and with two Seanad seats currently unfilled, this theoretically allows for the government to nominate, for example, a businessperson, economist or academic to the Seanad and then bring them into the government.

These possibilities could, of course, be incorporated into a unicameral Oireachtas, but for now Fine Gael seem content to propose the abolition of the Seanad and the reduction in the number of TDs without proposing a more nuanced vision of how the Oireachtas should function.